Excerpt:.....proceeds that the rule of technicality should not stand in the way of giving relief to the petitioners like the present ones. eventually the conduct of party seeking relief, infringement of right complained of, availability of alternate remedy along with questions of propriety do have its own importance. 10. now a closer scrutiny of the earlier order made by the division bench of this court (supra)clearly indicates that the cause was the same and petitioners therein which included petitioner no. 11. needless it is to state by entertaining the fresh petition wherein the defect of non-joinder is removed and some other additional parties have arrayed themselves in the same cause the title would clearly lead to circumventing what was held by this court earlier and to allow such..........is now being agitated before us once again in the present petition. it cannot be disputed that the present petitioners are seeking the same said relief which was substantially sought in the earlier petition, though by 25 councillors who were petitioners in earlier petition are not parties, so also all those who participated in the meeting of co-option. respondents arrayed including the persons duly declared as co-opted being respondents nos. 4 to 9 . as indicated above there being additional prayer in the present petition regarding the vires of section 9 of the act. state is added as party -respondent no. 10.4. in the return an objection is raised on behalf of respondents no. 3 and also other respondent to the tenability of such a petition raising the same challenge under article 226 of.....

Judgment:

Masodkar, J.

1. By the present petition the petitioner seek relief inter alia that the co-option of Councillors to the Amravati Municipal Council which met to co-opt six Councillors on December 30, 1974, should be declared illegal upon finding that the rejection of the nomination of the petitioner Nos. 2 to 5 for that co-option is vitiated being arbitrary, mala fide as well lacking in authority in law relevant for that purpose. We may mention that in the prayer there is also a challenge to the legality of the provisions of Section 9 (1) of the Maharashtra Municipalities Act 1965 and it is prayed that it should be declared ultra vires. Petitioner No. 1 seeks to approach this Court mainly as the elected councillor of the said Municipal Council while others rest their right upon the fact they were duly nominated candidates for co-option and feel aggrieved by the decision taken by the respondent No. 2 acting as Presiding Authority in rejecting their nominations on the ground that they lack the qualification or otherwise are not eligible under Section 9 of the Act to be the co-opted Councilors. The procedure with regard to co-option is regulated by the Maharashtra Municipal Council (Co-option of Councillors) Rules, 1967 which prima facie permits calling for nominations , its scrutiny by the presiding authority and further voting by single transferable vote system. Petitioner claim that the co-option has been brought about in disregard and in violation of these rules.

2. Now few facts which are not in dispute and necessary to state for the purpose of our present premises are that the constitution of the Amravati Municipal Council was taken up by holding an election of 60 members in November 1974 under the provisions of Maharashtra Municipalities Act. 1965. Section 9 requires and contemplates co-option of member; Initially a notice of meeting as required by Section 9 (1) of the Act to co-opt 6 members to the Council was issued on December 19, 1974 and process of co-option was completed in the meeting of December 30, 1974. For the purpose of this co-option was competed in the meeting of December 30, 1974. For the purpose of this co-option nominations were called for and in the scrutiny the presiding authority, respondent No. 2 rejected the nominations of Sarvashri B.S. Pund (petitioner No. 2). S.B. Nagar (petitioner No. 4) K.M. Joshi, Afsal Hussain and G.L. Mudgal (petitioner No. 3) After withdrawal, 6 persons remained in the field and they were declared without any voting to have been co-opted. It may be mentioned that petitioners do challenged the motives of respondent No. 2 in adjourning the meeting earlier called and further challenge the correctness of the proceedings as recorded.

3. Special Civil Application No. 1 of 1975 was immediately filed in this Court on January 1, 1975 challenging all these steps and eventual process of co-option and we get from the record of that petition that as many as 25 councillors including present petitioner No. 1 were the petitioner in that petition. That petition (Spl Civil Appl. No. 1 of 1975 (Bom). Prabhakar v. Collector, Amravati) came up for hearing eventually and the Division Bench of this Court (Chandurkar and Dharmadhikar, JJ. ) by its order of 13-2-1975. dismissed the same holding that no relief could be given in the said petition for in that co-opted Councillors who were entitled to justify co-option on all possible grounds were not made parties thereto. It appears from that order that request was made to grant time to join the co-opted Councillors as parties to the petition but the Court specifically refused the same. It was pointed out there that the said petition has been pending since January 1975 and since the holding of elections of the Councillors considerable time had elapsed and the council is not being duly constituted, such a belated prayer cannot be granted. It was also observed that aggrieved petitioners had also an alternate remedy of the petition as provided by Section 21 of the Maharashtra Municipalities Act. In the result, therefore the Division Bench of this Court, discharged the rule in that matter which raised substantially the same challenge that is now being agitated before us once again in the present petition. It cannot be disputed that the present petitioners are seeking the same said relief which was substantially sought in the earlier petition, though by 25 Councillors who were petitioners in earlier petition are not parties, so also all those who participated in the meeting of co-option. Respondents arrayed including the persons duly declared as co-opted being respondents Nos. 4 to 9 . As indicated above there being additional prayer in the present petition regarding the vires of Section 9 of the Act. State is added as party -respondent No. 10.

4. In the return an objection is raised on behalf of respondents No. 3 and also other respondent to the tenability of such a petition raising the same challenge under Article 226 of the Constitution because of the earlier dismissal of the petition filed for the same said relief. It is specifically stated that the petitioners Nos. 2 to 5 were not only aware of the earlier proceedings but were assisting in its prosecution in this Court. It is submitted that in fact the earlier petition was identical and based on same cause and title and sought identical reliefs and its dismissal on any ground is fatal to the present partition.

5. We will briefly indicate the approach of the learned counsel appearing for the petitioner to the question of tenability of such a petition agitating inter alia the same said cause, Mr. Manohar urges that the right of the petitioners No.s 2 to 5 to get relief and as such to file the present petition is an independent right, not affected by the right that was agitated by the 25 Councillors and as such neither the doctrine of res judicata nor its general principles are attracted. This, is more so for the decision of the earlier writ petition was not on merits but because of the improper constitution of the petition itself., the defect being non-joinder of necessary parties. Apart from this the learned counsel submits that the jurisdiction of this Court which it is itself discretionary and equitable under Article 226 of the Constitution is not fettered by rules of technicalities. The learned counsel further submits that neither there is any principle nor policy that should stand in the way of the petitioner because according to hi, , here is a case where want of jurisdiction on the part of the presiding authority is patent. it is urged that after all, the earlier petition failed because of a defect of technical nature and that should not be treated as an obstacle for entertaining the present petition. Learned Counsel suggest that by refusing to interfere we would permit illegalities to perpetrate in the affairs of public authority and its constitution. Upon clear considerations it is submitted that the presiding authority herein has manipulated statutory process to the advantage of a given party in power. It is further urged that there is a possibility to uphold the challenge that Section 9 being ultra vires, there being no guideline legislatively laid down to determine the so-called special knowledge spoken to by Section 9 itself. he submits that by a look at the record the arbitrariness of the decision brought before this Court will be fully demonstrable. In such cases where there is a lack of jurisdiction and further where it is possible to strike down the action as being arbitrary and mala fide and further more when the statute itself may be found upon scrutiny to be infirm, the submission proceeds that the rule of technicality should not stand in the way of giving relief to the petitioners like the present ones. As to the conduct of the petitioner Nos. 2 to 5 the learned counsel explains that their cause was already subjudice in the earlier petition and this Could should not treat that conduct as either giving rise to acquiescence on their part or inferring laches against them. According to him, there is no case of delay as the petition is filed almost within few days after the dismissal of the earlier petition. For the proposition that patently there is lack of jurisdiction in the Presiding Officer, the learned counsel has relied on two English decision and the decision of the Calcutta High Court in Ahmed Hussain v. Aswani Kumar : AIR1953Cal542 , where those decisions have been referred being Johan Pritchard. v. Mayor Aldeermen and Citizens of the Borough of Bangor(1888) 13 AC 241. and Harfoed v. Linksey (1899) 1 QB 852. He has further relief on the decision of the Supreme Court on the principle of res judicata, being Daryao v. State of U.P. : [1962]1SCR574 and Aditya Kumar Singh v. Principal, Medical College, Ranchi , : (1972)4SCC267 .

6. As against this, Mr. Deshpande learned counsel appearing for the respondent No. 3 urged that on the general principle applicable on the basis of the doctrine of res judicata petitioner have no right to approach this Court once again. He relies on the observations of the earlier decision of the Division bench to point out that it was a dismissal proper by a speaking order and further he relies on the conduct of the present petitioner who could have impleaded themselves as parties but took their chance by waiting outside the arena of litigation. According to the learned counsel, it will neither further ends of justice nor any principle of public policy to entertain such successive challenges only because for submissions are made taking some more additional grounds. The learned counsel has relied on the decisions of the Supreme Court in Madho Das. v. Mukand Ram. Devilal v. Sales Tax Officer : [1965]1SCR686 and Tilokchand v. H.B. Munshi : [1969]2SCR824 and Tilokchand v. H.B. Munshi : [1969]2SCR824 .

7. After giving our careful consideration to the submission made, we feel it difficult to overlook the conduct of the present petitioners and the logical results likely to follow upon the propriety of entertaining such successive petitions having identical interest and same said challenges. Undoubtedly, the jurisdiction conferred under Article 226 is an equitable one and its exercise discretionary. Eventually the conduct of party seeking relief, infringement of right complained of, availability of alternate remedy along with questions of propriety do have its own importance. Although such fetters of given doctrines may not affect jurisdiction in appropriate cases brought before this Court to do justice, judicial propriety demands that we do not disrupt the pattern of uniform harmonious and final adjudication in matters brought before us.

8. Firstly in this we feel right in emphasising that our processes of writs amongst others be not subjected to abuse by litigants sleeping over their rights quietly as the cause itself is entertained and is being decided. Secondly and further more we must not create a situation while exercising our co-ordinate jurisdiction with other Division Bench of this Court which will have a semblance of entertaining a cause which for a given reason the other bench by a speaking order declined to entertain. Lastly it should be impermissible course in the administration of justice to permit parties to circumvent the decisions of this Court by resort to independent petition on the same cause without leave being given therefor and without challenge to the same in higher forum, which in substance would be tantamount to judicial review of the decision of one Bench by another Bench. We take these principles implicit and in here in this equitable and extraordinary jurisdiction. Comity between co-ordinate divisions of Court above all commands to follow the collision-free course so that administration of justice has a real look of uniformity and life of union.

9. We feel that because of all those reasons and also looking to the conduct of the petitioners that brings out purposefully laches and unexplained delay, it would be proper exercise of discretion not to entertain the challenge nor enter upon the merits of the present matter.

10. Now a closer scrutiny of the earlier order made by the Division Bench of this Court (supra)clearly indicates that the cause was the same and petitioners therein which included petitioner No. 1 herein had challenged the process of co-option almost on the identical grounds. The petition was dismissed by a speaking order and after hearing. The reasons that weighed with the Court were that necessary parties were not joined and as the process of constitution of the Council was being delayed, it was not proper to permit joinder of parties and that request was expressly rejected. It was also pointed out that petitioners could agitate their grievances in the forum prescribed by the statute under which they were claiming the relief. The total result of this order to our mind is, to direct the parties to have the remedy provided by the Act and refuse to entertain a petition in spite of their readiness to cure the defect of non-joinder of parties because of the fact that constitution of the statutory Council was likely to be further delayed.

11. Needless it is to state by entertaining the fresh petition wherein the defect of non-joinder is removed and some other additional parties have arrayed themselves in the same cause the title would clearly lead to circumventing what was held by this Court earlier and to allow such attempt would in our view be an abuse of the process of this Court. Moreover the ground that prevailed with the Bench that constitution of the Council was being delayed and that parties should follow the statutory remedy provided for when the permission to add parties was refused,. will have to be annulled in this petition for entertaining the challenge and that in our view would tend to indicate nonetheless disharmony and conflict in exercise of co-ordinate jurisdiction. Question is not, what we would have done while presiding over that Bench but question is where lies the interests of judicial harmony which must of necessity be zealously guarded and which has all its juridical roots in public policy in this regard . In substance we would by entering the controversy in the circumstances doing what could alone be done only by exercise of powers of review for which neither there is any ground nor any appeal to us. Only because another Division Bench (Deshmukh and LalitJJ) of this Court issued rule in this petition it does not follow that these principles are not available to us. Non-dismissal of the petition at that stage does not involve the result that the matter once decided is open to review on merits and must be so examined. We would only observe that once this Court by its co-ordinate division rejects a cause by a speaking order it would not be correct exercise of our powers while sitting in equal authority to entertain cause that may affect the finality of the earlier orders and raise possibility of conflict of judicial decisions in the same Court . Neither on the count of compunction nor because of any inbuilt compulsion some other approach is indicated. We would, therefore, in our discretion prefer to refrain from retreating upon the cause which is no more virgin under the facts and circumstances herein obtaining.

12. Though we were addressed on both sides on the applicability of doctrine of res judicata and its general principles and were referred to the decision stated supra, we are not inclined to consider the same as we have indicated above that judicial propriety in ;such matters require us to uphold the orders made by the co-ordinate division of this Court and not to permit any circumvention thereof by such successive writ petitions. This is more so when there is identity of cause and similarity in the relief sought from the Court. Suffice it to observe that had we been called upon to apply the doctrine of res judicata upon its closer scrutiny we might have been inclined to hold in favour of the petitioner that the same doctrine is not strictly available as far as the parties arrayed as petitioners being Nos. 2 to 5 as well the newly added party respondents, being Nos. 4 to 9. In the matter of assertion of right and its cause every one of the petitioners now before us will have to be independently considered and the doctrine would not be answered except as far as the petitioner No. 1 is concerned. Mere defect in the frame of the petition such as that of non-joinder of necessary parties and refusal on that count to interfere, would not be a decision on merit and thus such disposal would prima facie be out of the bar of res judicata or its principles in writ matters. We wish to make it clear that these observations have become necessary only because we were addressed by parties in that regard, though we do not propose to express ourselves finally on this topic.

13. In our view, the ends of judicial propriety in the matter of such successive petitions filed in writ jurisdiction would be sufficiently subserved by discharge of rule and expressly discouraging such attempts.

14. As we must, we may now proceed to examine the conduct of the petitioners who seek to be the relaters of writ of this Court. That question too is closely knit with the propriety of entertaining causes in this extraordinary jurisdiction and ends of justice in that regard.

15. As far as petitioner No. 1 is concerned, his conduct with regard to the steps in procedure and the proceedings before this Court stands already adjudicated by the earlier decision of this Court wherein his petition along with others was found to be defective and leave to add additional parties was refused directing him to the remedy of filing the petition under Section 21 of the Maharashtra Municipalities Act,. 1965. As far as the conduct of petitioner Nos. 2 to 5 is concerned, there is nothing better. In the affidavits filed in reply to the petition , the respondents have specifically stated that out of these petitioners, petitioner No. 2 Mr. Bhaurao Pund and petitioner No. 4 Mr Sheochandra Nagar had been actively instructing the counsel in the earlier petition and that tall the petitioner Nos. 2 to 5 were appearing in court along with Municipal Councillors who were the petitioners in the earlier petition. These averments have not been denied and no counter -affidavit has been filed on behalf of the petitioners Nos. 2 to 5 . We, therefore take it that these petitioners Nos. 2 to 5 were not only aware of the earlier proceedings but were in fact participating along with the petitioners therein, though they did not think it fit to join themselves as the proper petitioners. Their complaint is in substance relating to the decision of the Presiding Authority in rejecting their nominations on 30th. of December, 1974. From then onwards, by themselves, they did not feel aggrieved and did not seek any relief by filing any petition before this Court. Though they were so participating in the earlier petition, they chose to stand by and waited and allowed that petition to take the course it has taken as indicated above. The only inference that can be drawn from the conduct of the petitioner Nos. 2 to 5 is that they slept over their remedy all along and that they did not move with purpose at least in the process of earlier petition and allowed it to frustrate. Furthermore their attempt to file present proceedings after the dismissal of earlier one is an attempt to circumvent the decision already reached. Similarly their conduct clearly suffers from laches and the present cause too is affected by unexplained delay. It was faintly suggested for the petitioners that they might be awaiting the decision of the earlier petition and the period taken by those proceedings should not be taken into account while considering the delay. It has to be observed that such stand is in fact self-contradictory on the showing of the petitioners themselves. On the one hand they are trying to assert apart from the earlier proceedings, their independent right to approach this Court and seek their remedy and when the question of delay comes, on the other they want to rely on the time exhausted by the earlier proceedings. The trite antilogy speaks volumes as far as the conduct of these petitioners with regard to the present proceedings is concerned. The only reasonable interference that can be drawn from the facts and circumstances available to us is that these petitioners Nos. 2 to 5 has not been zealous about their so-called right nor felt aggrieved by the decision of the Presiding Authority until the earlier petition was dismissed. Both on the ground of undue delay as well because of laches the petitioners Nos. 2 to 5 are not worthy relaters of any relief from this Court under Article 226 or Article 227 of the Constitution under which they have purported to move the present petition. The right to move this Court in this extraordinary jurisdiction is not a right of course. In every case that arises within this jurisdiction it will be legitimate enquiry as to whether the cause suffers from undue and unexplained delay and what is the conduct of the petitioners who seek the remedy. In this regard we have no doubt that the petitioners Nos. 2 to 5 have little to satisfy us on both these counts. The decision to reject their nomination and taken as back as December 1974 and their petition has been filed on 17th February 1975. But for the injunction in the earlier proceedings, the names of the co-opted Councillors would have been gazetted and the Municipal Council would have been fully constituted. Even the remedy under Section 21 would have been available upon the gazette notification to everyone concerned. The provision also requires the petitioners therein to move the election petition with in a period of ten days from such notification. That shows that even the policy underlying the parent statute under which the petitioners are asserting the right requires challenges to be brought before the Court within shortest possible time. This policy cannot be overlooked while considering the petition filed after about 1 1/2 months. We should be loath to consider such a petition which ought to have been filed expeditiously. looking to the provisions of the statute and under the circumstances, therefore, it would not be a proper exercise of discretion to encourage such filing of petitions.

16. By deciding to so discharge the rule issued in the present petition for the reason indicated above, we do not think that the petitioners are being subjected to any grave injustice or unforeseen hardship with regard to their grievance. In fact under the provisions of the Maharashtra Municipalities Act, 1965, an efficacious remedy to ventilate such challenges has itself been provided for . It is clear that the underlying legislative anxiety under the provisions of the act appears to be that the process of election once started should as far as possible be allowed to take its own course without any judicial intervention and the challenge should be only in the forum provided for by the provisions of that Act. However, it is undoubtedly well established that the remedies provided by the Constitution under Article 226 or under Article 227 are not nor can be barred by the provisions of such statute. But the Court called upon to exercise its constitutional power can always take into account the fact that the petitioner does have efficacious remedy provided by the law under which the grievance is set up. We are not unmindful to the fact that before such a forum the petitioners may not be in a position to assail the validity of the provision of Section 9 of the Municipalities Act, but we have our doubts whether having asserted right under that provisions petitioner would at all be entitled to make such challenge. Whatever that may been this is by itself no reason to hold that by refusing to interfere in the present petition petitioners are without remedy or are subjected to process that tends to be onerous or inequitable. The substantial relief for which the petitioners filed the petition is directed against the decision of the Presiding authority rejecting their nomination and the validity of that can well be gone into under the provisions of Section 21 of the said Act. In the sum , therefore, we hold that neither in principle nor under any policy the present petition can be entertained after the dismissal of the earlier petition arising out the same cause.

17. We have also found that the conduct of the petitioners suffers from laches and the present petition to this Court is unduly delayed. Taking the view in this manner, we discharge the rule though we direct that the parties shall bear their won costs.

18. As a result of this, the interim injunction granted on 18-2-1975 will stand vacated.

19. Leave to appeal to Supreme Court was sought by one of the petitioners along with a prayer that the period of interim injunction should at least be extended by three weeks. We are unable to grant either of the prayers. the leave is refused.